The Petitioners appearing before the Court at the preliminary hearing of the material judicial review of the Population Administration Law virtually, Thursday (7/21/2022). Photo by Humas MK/Ifa.
Thursday, July 21, 2022 | 14:46 WIB
AKARTA, Public Relations—The Constitutional Court (MK) held the material judicial review hearing of Law No. 23 of 2006 on Population Administration in conjunction with Law No. 24 of 2013 on the Amendment to Law No. 23 of 2006 on Population Administration on Thursday, July 21, 2022 in the plenary courtroom. This preliminary hearing for case No. 71/PUU-XX/2022 was presided over by Constitutional Justices Enny Nurbaningsih, Wahiduddin Adams, and Saldi Isra.
The petition was filed by Emir Dhia Isad, Syukrian Rahmatul'ula, and Rahmat Ramdani. They challenge the elucidation to Article 35 letter a of the Population Administration Law, which reads, “‘Marriage determined by a court’ is marriage between people of different religions.”
The Petitioners, who are graduates of family law who studied and understand the Marriage Law, do not agree with the provision of the elucidation to said article, which allows marriage without a religious ritual as regulated in Article 2 paragraph (1) of the Marriage Law. At the hearing, Emir Dhia Isad said the Petitioners challenged the Population Administration Law on the basis of the protection of religious values in Indonesia, the principles of marriage, and family resilience.
“The elucidation to Article 35 letter a of the Population Administration Law clearly contradicts the values of constitutional philosophy implied in Article 29 paragraph (1) of the 1945 Constitution and the first precept of Pancasila that is included in the Preamble to the 1945 Constitution, which can also be interpreted that the state is based on religious values as one of the constitutional foundations in establishing the state and administering the government,” he said virtually.
Emir asserted that the article implies that the state is obliged to imbue all forms of legislation and policies with faith in God Almighty. The 1945 Constitution does not separate religion from the state, and freedom of religion is guaranteed by the state.
“Religious values are the source of state policies so all policies that contradict religious values are constitutional," said the Emir.
He further said that in its opinion on Decision No. 140/PUU-VII/2009, the Constitutional Court stated that belief in God Almighty is the consequence of the acceptance of Pancasila as state’s philosophy. Any propaganda that distances citizens from Pancasila are unacceptable.
He added that the Court had asserted that “The principles of the law-based state Indonesia must be seen from the perspective of the 1945 Constitution, as rule of law that places the principle of One Godhead as the main principle, as well as religious values that underlie the life of the nation and state, not a state that separates religion and the state nor merely adheres to the principles of individualism and communalism.”
The Petitioners believe that based on said philosophy, all legislation needs to be based on the concept of morality based on the values of the One Godhead and that it is a non-negotiable necessity in the structure of the Republic of Indonesia. Therefore, elucidation to the a quo article needs not be maintained other than that to affirm that religious values are the guidelines for social life as contained in the state’s positive law.
“Based on the framework for this judicial review petition, in order to jointly build the community, nation, and state as provided in Article 28C paragraph (2) of the 1945 Constitution, the Petitioners filed a material judicial review of the Elucidation to Article 35 letter a of the Population Administration Law, [which] creates a conflict of laws and regulations […], specifically in relation to Law No. 1 of 1974 in conjunction with Law No. 16 of 2019 on Marriage,” he said.
Meanwhile, Syukrian (Petitioner II) stated that the word ‘family’ as guaranteed in Article 28B paragraph (1) of the 1945 Constitution and Article 28G paragraph (1) of the 1945 Constitution cannot be interpreted solely as a form of physical/biological relationship between a mother and father and their children, but also that psychological, religious, security, and educational elements within family relations as a constitutional institution are recognized by the State because family resilience has a direct effect on national resilience (if the family is not strong, the nation and state are weakened, and it could lead to national division where foreign interferences could control it.
“Based on the abovementioned explanation, interfaith marriage has legal consequences because it is not valid according to religion, so it is also invalid according to Law No. 1 of 1974 in conjunction with Law No. 16 of 2019 on Marriage. Such an illegitimate marriage can have consequences on the status and position of the children. Based on Article 42 of the a quo Law, a legitimate child is a child born within or as a result of a legal marriage. If the marriage of both parents is not legal according to religious law or marriage law, children born from an interfaith marriage is illegitimate or born out of wedlock,” he explained.
Based on these reasons, the Petitioners asked in the petitum that the Court declare the elucidation to Article 35 of the Population Administration Law unconstitutional.
Justices’ Advice
Constitutional Justice Saldi Isra advised the Petitioners to separate the constitutional basis to explain the loss of constitutional rights. He asked them to explain how the enactment of the article is detrimental to their constitutional rights.
“So, it must be explained what losses or potential losses you experience. It is up to you as petitioners. […] It must be proven that the article you challenge [and] the elucidation are contrary to the articles within the constitution. It must be explained so that your petition would not be obscure. If you becomes obscure, you know there will be consequences,” he said.
Justice Saldi said not to mix the explanation of the loss of constitutional rights with that for the contradiction between the norm and the Constitution. He also asked the Petitioners to observe similar petitions.
Meanwhile, Constitutional Justice Enny Nurbaningsih advised the Petitioners to study the Court’s procedural law and to describe the loss of constitutional rights.
Writer : Utami Argawati
Editor : Nur R.
PR : Andhini S. F.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 7/25/2022 09:00 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.
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